235 N.W. 810 | Iowa | 1931
In the year 1919, and for several years prior thereto, Francis Taylor was the owner of the north 120 acres of the NW 1/4 Section 27-95-46, Sioux County, Iowa, and was also the 1. VENDOR AND owner of the adjoining SW 1/4 Section 22-95-46, PURCHASER: located to the north of the 120 acres above performance described. At the time of the commencement of of the instant action, on December 10, 1929, contract: plaintiff was the title holder of the SW 1/4 bona-fide Section 22-95-46, under the last will and purchaser: testament of her husband, Francis Taylor, who who is not. died March 30, 1927.
On March 29, 1911, Francis Taylor and Elizabeth Taylor, his wife, executed and delivered a warranty deed, with the usual covenants, conveying to Sioux County, Iowa, a parcel of land four rods wide, for a public road. This parcel of land was described in the deed as follows:
"Commencing at a point 20 rods east of the northwest corner of Section 27-95-46, 30 rods in a southeasterly direction to a point 15 rods south from the north line of said section; thence 15 rods due east, thence 30 rods in a northeasterly direction to a point of intersection with said section line."
This strip of road contained two acres. The attached drawing will prove helpful in understanding the parcels of land involved on this appeal. *1124
[EDITORS' NOTE: DRAWING IS ELECTRONICALLY NON-TRANSFERRABLE.]
It may be observed from the aforesaid drawing that the road containing the two acres cut off
On May 3, 1918, Francis Taylor sold the 113.5 acres south of the road, under contract, to one Nicholas Walraven. Upon the trial, Walraven testified that he bought the 113.5 acres lying south of the new road, and the part of the description lying north of the road was not included in his purchase. He further testified that he sold this real estate (113.5 acres) to Neal Mouw, and assigned to Mouw the real estate contract of purchase. Walraven did not receive a deed from the Taylors under the contract, but, on October 2, 1919, Francis Taylor and Elizabeth A. Taylor, husband and wife, conveyed to Neal Mouw and Albert A. Mouw the N 1/2 of the NW 1/4 and the N 1/2 S 1/2 NW 1/4 Section 27-95-46 West of the 5th P.M., except the strip of land deeded in 1911 to Sioux County for highway purposes, as hereinbefore described. Mouw had possession and ownership of the Walraven contract of purchase, and consequently the grantee Mouw knew that the Taylors were conveying to him 113.5 acres of the 120 acres. *1125
On February 19, 1920, the Mouws, with their respective wives, executed and delivered, in consideration of $35,185, a warranty deed to Henry Mouw, conveying the real estate heretofore described, and excepting the strip of land deeded to Sioux County for highway purposes, as hereinbefore described. Henry Mouw bought the land in question under a contract from Henry Van Roekel. Henry Mouw testified:
"I remember that there was 113.5 acres in this particular tract, and I sold it to Herman Renken. I do not remember whether we had a new contract for that sale. The consideration in the sale to Renken was computed at 113.5 acres. I examined this land at the time I bought it, and was familiar with the road lying along the north side, and saw the condition of the fence and the road and all, with reference to this land."
On February 23, 1920, Henry Mouw and his wife Hannah executed and delivered a warranty deed, in consideration of $40,292, to Herman Renken, conveying to him the parcel of real estate heretofore described, and excepting the strip of land four rods wide for highway purposes, as heretofore described. This deed contained the usual covenants as contained in the former deeds, with the exception of a first mortgage of $15,000 and a second mortgage of $10,000.
On May 12, 1919, Herman Renken entered into a contract with E.A. Lindenmann to sell and convey the "north three fourths of the northwest quarter of Section 27, Township 95 north, of Range 46 West of the 5th P.M., being in Sioux County, Iowa, containing according to the United States Survey, 113.5 acres, for the sum of $42,462." It appears, therefore, that, when Lindenmann received his warranty deed from Renken, he knew he was buying 113.5 acres. One G.C. Knowlton was the real estate agent who sold the land for Henry Mouw to Mr. Renken. Knowlton testified upon this trial:
"I showed this land to E.A. Lindenmann, and we were on the road at the north end of the land. I remember telling him later that the land I was trying to sell contained 113.5 acres, and the 120 was short that 6.5 acres, because the road cut it, leaving 113.5 acres south of the road. I did not sell him that part of the NW 1/4 of Section 27 lying north of the road. I knew Mr. Taylor was the owner of that." *1126
Lindenmann himself on the witness stand testified:
"My contract with Renken called for 113.5 acres. I knew the road curved through this land. I remember that there was a fence on the section line from both ends. The fence followed the road at the time I bought it. I never demanded possession from anybody for this
It is shown that, when Lindenmann purchased the Taylor land from Renken, he paid for it on the basis of 113.5 acres. He admits it, and the mathematics prove it. The Taylors were always in undisputed possession of the disputed tract, and no grantee ever made demand therefor. The plea of bona fides is an affirmative plea, and as a defense, must be sustained by a purchaser by competent proof. Hannan v. Seidentopf,
Lindenmann alleged in his answer that the plaintiff, Elizabeth Taylor, is estopped to make her instant claim, by reason of a conversation which Lindenmann had with Mrs. Taylor just prior to Lindenmann's payment of the $15,000 first mortgage on the land. There is no question but that these two people had a conversation, but Mrs. Taylor denies the conversation as recited by Lindenmann. It is obvious from the evidence that Mrs. Taylor did not estop herself. Lindenmann testified that "she [Mrs. Taylor] seemed to be perfectly willing that I should have possession of it [
"I think it would have been a factor in my determining in cleaning up of that mortgaged indebtedness. I asked her in regard to putting a fence over there on the section line, so I could have possession of it [the disputed tract] and use it as pasture or hay ground, or whether my son, who was on her place on the *1127 quarter section, would have another year and pay me rent on it; and she said, `Go and see Albert.'"
Lindenmann did go to see Albert. Albert testified that the piece of ground (
The record further discloses that the
The instant action is triable de novo, and "in this court the facts, as well as the law of the case, are again reviewed and readjudicated." Pierce v. Wilson, 2 Iowa (Clarke) 20, 26. It is here tried as if this court had original jurisdiction, regardless of the decision of the court below, or the basis upon which the decision rests. Austin Spicer v. Carpenter, 2 G. Greene 131.
The primary objective of this case is the quieting of title to the disputed tract (
*1129FAVILLE, C.J., and STEVENS, ALBERT, and WAGNER, JJ., concur.